CAAST may try to shore up support for its cause among Canadian policy makers now that a federal court of appeal has shut out the software sector from the recording industry’s bid to stop online music piracy.

Bob Kruger, vice-president of enforcement at the Washington, D.C.-based Business

Software Alliance (BSA), which works closely with the Canadian Alliance Against Software Theft, said CAAST and the BSA plan to carefully watch the recording industry’s case against violators of sound recordings.

Kruger said the Federal Court of Appeal ruled the heated copyright issue was primarily about music.

If the ruling isn’t overturned, the software groups will consider whether they can dig deeper and correct a “”serious problem”” in Canadian law, he said.

“”Quite honestly, we’re surprised and disappointed that the court wasn’t interested in (our) perspective. We think we could have assisted the court in getting the answer right”” about the distinction between the interests of the software and music industries, Kruger said.

“”If, in fact, this ruling accurately reflects Canadian copyright law, then that puts Canada in a very small minority of countries that allow this type of activity to take place.””

Kruger said four software industry associations, including CAAST and BSA, had tried in mid-July to intervene in an appeal of a March 31 court opinion whose most troubling ruling for the software industry stated copyright infringement was not equated to putting copyrighted files in shared folders on P2P systems for others to download. The court denied this motion.

He said CAAST has filed the only motion that it can file in this case and, “”Unless we appeal that ruling, we’re pretty much left on the sidelines.””

But he’s not certain the appeal is worthwhile, since the same court that made the initial ruling will rule on it.

Meanwhile CAAST, which doesn’t believe the software sector’s voice will be any fainter without the strength of the Canadian recording industry, will continue advocacy and public awareness efforts to teach software users to respect intellectual property.

Mark MacNeil, an intellectual property lawyer at Fasken Martineau in Montreal, said he believes the court “”correctly decided the issue on denying the intervention.””

MacNeil said the Copyright Act provides fewer rights to the recording industry than the software industry, with the software industry having exclusive rights to communicate to the public by telecommunications and the recording industry exercising only the right to reproduce music.

On this basis, the courts ruled there were two different issues at play, and the case had to be narrowed to just the recording industry’s complaints, he said.

That said, however, software companies still have “”strong arguments to make on their own . . . (and, in fact) they have broader rights under the Copyright Act than the recording industry,”” he said.

“”For example, if person A was to put software into a shared directory and left it out for the public, they would arguably be violating the software producer’s right to communicate their works to the public by way of telecommunication,”” MacNeil said.